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When a party is injured by the negligent or willful act of another, the injured party may be entitled to compensation for injury or damage. Compensational claims can include the following: property damage, pain and suffering, medical expense, medication expense, loss wages, loss of enjoyment of life (can not do things after accident that could be done before the accident), household chores limitations and psychological damages (e.g. effect on mental health, effect on marriage and effect on relationships with children).
Before the injured party can receive compensation, it is the injured party’s responsibility to:
- identify the responsible party
- demonstrate that the responsible party’s act was negligent or willful;
- demonstrate that the injured party was injured or damaged as a direct consequence of the negligent or willful act; and
- prove the monetary value of injury or damage to which the injured party is requesting compensation.
If the injured party can not prove all of the above, he/she may receive no or little compensation for injury or damage.
Individual (insured party) buys insurance, a contract (insurance policy) in which the insurer (insurance company) agrees for a fee (insurance premiums) to pay the insured party all or a portion of any loss suffered by claims by others (injured party) due to the insured's alleged negligence (e.g. auto insurance). Insurance companies may refuse to pay a claim by an injured party against an insured, but at the same time may be required to assume the legal defense (pay attorney's fees or provide an attorney for their insured) under the doctrine of "reservation of rights”.
Insurance companies are businesses accountable to their shareholders. Any accident claims they pay reduces the companies' profits and dividends to its shareholders. It is the insurance company claim representative’s (claims representative) responsibility to deny payment on fraudulent claims and minimize payment on all other claims.
When an injured party files a claim with an insurance company, the claim representative understands that the burden of proving entitlement to compensation is on the injured party. The claims representative will often ask the injured party for permission to record the representative’s questions and the injured party’s responses.
In its questioning, the claims representative is attempting to determine if the injured party can prove all the elements listed above. If the injured party can not prove all the elements or does not prove the claim convincingly, the claims representative may deny payment on the claim or will offer a small amount to settle.
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If a settlement can not be reached that is agreeable to the injured party, the injured party must file suit to obtain additional compensation. The insurance company will provide attorneys to defend its insured and may attempt to introduce the injured party’s recorded statements at trial.
In the United States of America we have an adversarial system of law. The burden is on the initiating party to establish that they have the right to prevail in an action. In a criminal case, the defendant is presumed innocent until proven guilty in a trial. In a civil case, the defendant is presumed not at fault until proven at fault by the injured party in a civil trial.
In a trial there are three or four parties or groups. There is the Petitioner or Plaintiff, Respondent or Defendant, Judge or Commissioner and sometimes a Jury.
Petitioner or Plaintiff is the party that initiates a lawsuit. The Respondent or Defendant is the party against whom a lawsuit is filed. The Judge is a public official who gives the law and conducts a trial according to the rules of civil or criminal procedure. A jury is a group of people selected to apply the law and be the determiner of facts in a trial.
There two types of trials. They are jury trials and bench trials. In the jury trial, the jury applies the law, as stated by the judge, to the facts of a case and renders a decision, called the verdict. In a bench trial the judge applies the law to the facts of a case and renders a decision/verdict.
Statutory and case laws are the laws used in trials. Statutory Laws are laws established by state or federal legislatures. Case laws are laws established in a court trial which become precedent for subsequent trials.
Trials are conducted according to the rules of civil and criminal procedures. Rules of civil procedure and criminal procedure are the rules and regulations set out in both state and federal laws which establish the format under which civil and criminal lawsuits are filed, pursued and tried. Generally when an objection is made in court, the objecting party is saying one of the procedural rules has been violated.
Love-Law can represent you in any type of personal injury action. Whether you are the victim of an injury or are faced with a lawsuit regarding another individual's injury, Love-Law has the knowledge you need.
Love-Law is experienced in all facets of personal injury law, including automobile accidents, slip & falls, other physical injuries and workers' compensation. We work with you throughout the process to ensure you gain the desired outcome.
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